1

Filed 4/21/22

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

WELDON K. McDAVID, JR.,

Defendant and Appellant.

 D078919

 (Super. Ct. No. SCN363925)

APPEAL from a judgment of the Superior Court of San Diego County, 

Sim Von Kalinowski, Judge. Affirmed in part, reversed in part, and 

remanded with directions. 

Stephen M. Hinkle, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, A. Natasha Cortina, Acting Assistant Attorney General 

and Kelley Johnson, Deputy Attorney General, for Plaintiff and Respondent. 
2

Defendant Weldon K. McDavid, Jr. appeals a judgment from his 

resentencing hearing after we remanded this matter following his original 

appeal in People v. Lovejoy et al. (July 28, 2020, D073477), a nonpublished 

opinion (Lovejoy).1 In Lovejoy, we affirmed McDavid’s criminal convictions, 

but vacated his sentence and remanded the matter to allow the trial court to 

exercise its discretion under recently amended Penal Code section 12022.532

to either impose or strike the section 12022.53, subdivision (d) enhancements 

that the court had originally imposed under the former version of the statute. 

On remand, the trial court declined to strike the section 12022.53 

enhancements and reimposed its original sentence, except for a reduction of

the restitution fines from $10,000 to $1,800. On appeal from his resentencing 

judgment, McDavid contends: (1) the court was unaware of, and therefore 

abused, its discretion to impose lesser, uncharged section 12022.53 

enhancements in lieu of imposing the greater, charged section 12022.53, 

subdivision (d) enhancements found true by the jury; (2) his $154 criminal 

justice administration fee imposed under former Government Code section 

29550.1 must be vacated to the extent that any amount remained unpaid as 

of July 1, 2021; and (3) the court erred by not crediting him with all actual 

custody time that he had served through the time of his resentencing. We 

vacate McDavid’s sentence and any balance of the criminal justice 

administration fee imposed under former Government Code section 29550.1 

that remained unpaid as of July 1, 2021, and we remand the matter for 

resentencing to: (1) allow the trial court to exercise its discretion as to 

whether to impose lesser, uncharged section 12022.53, section 12022.5, 

1 McDavid was tried jointly with his codefendant, Diana Lovejoy. 

2 All statutory references are to the Penal Code unless otherwise 

specified. 
3

subdivision (a), or other lesser included enhancements in lieu of imposing 

section 12022.53, subdivision (d) enhancements; (2) amend its abstract of 

judgment to reflect our vacatur of any criminal justice administration fee 

imposed under former Government Code section 29550.1 that remained 

unpaid as of July 1, 2021; and (3) correct its April 30, 2021 minute order and 

amend its abstract of judgment to reflect an award to McDavid of presentence

credit for all custody time served through the time of his April 30, 2021 

resentencing.3 In all other respects, we affirm the judgment. 

FACTUAL AND PROCEDURAL BACKGROUND

Trial. As discussed in Lovejoy, supra, D073477, in 2017, a jury found 

McDavid guilty of the offenses of conspiracy to commit murder (§§ 182, subd. 

(a)(1), 187, subd. (a)) (count 1) and premeditated attempted murder (§§ 664, 

187, subd. (a), 189) (count 2).4 The jury also found true allegations that in 

committing each of those offenses, McDavid intentionally and personally 

discharged a firearm, causing great bodily injury (§ 12022.53, subd. (d)) and 

personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). 

Original sentencing. On January 31, 2018, the trial court sentenced 

McDavid to an indeterminate term of 25 years to life on count 1 and a 

consecutive indeterminate term of 25 years to life for the related section 

12022.53, subdivision (d) enhancement, for a total term of 50 years to life in 

3 In the event that the trial court on remand exercises its discretion to 

strike either or both of the section 12022.53, subdivision (d) enhancements 

and impose lesser section 12022.53 enhancements, the court is directed to 

award McDavid presentence credits for all of the time that he has served in 

custody through the date of the resentencing. 

4 For purposes of our disposition of McDavid’s contentions on appeal, we 

need not repeat the underlying facts in this case. For a detailed factual and 

procedural background, see Lovejoy, supra, D073477. 
4

prison. The court also imposed, but pursuant to section 654 stayed execution 

of, an indeterminate term of 25 years to life on count 2, a consecutive 

indeterminate term of 25 years to life for the related section 12022.53, 

subdivision (d) enhancement, and a three-year term for the related section 

12022.7, subdivision (a) enhancement. 

First appeal. In his first appeal, McDavid contended, among other 

things, that the trial court abused its discretion by failing to exercise its 

discretion under recently amended Penal Code section 12022.53, subdivision 

(h), to strike the section 12022.53, subdivision (d) enhancements for 

personally using a firearm and causing great bodily injury in committing his 

two offenses or, in the alternative, that his counsel rendered ineffective 

assistance by failing to request that the court strike the section 12022.53, 

subdivision (d) enhancements. In particular, McDavid argued that because 

the record affirmatively showed that the court was unaware of its discretion 

to strike those enhancements, the matter must be remanded to allow the 

court to decide whether to exercise that discretion. 

In Lovejoy, we noted that effective January 1, 2018, Senate Bill No. 620 

(Stats. 2018, ch. 682, § 1), amended section 12022.53, subdivision (h) to 

permit the striking of a firearm enhancement under section 12022.53, 

whereas under the former version, imposition of a section 12022.53 

enhancement was mandatory. (Lovejoy, supra, D073477.) We concluded that 

at time of McDavid’s original sentencing (i.e., January 31, 2018), the trial 

court was unaware of its discretion under recently amended section 12022.53, 

subdivision (h) to strike the section 12022.53, subdivision (d) enhancements 

and we therefore remanded the matter for the court to conduct a new 

sentencing hearing to allow it to exercise that discretion. (Lovejoy, supra, 

D073477.) In our disposition, we stated in part: “McDavid’s sentence is 
5

vacated and the matter is remanded for resentencing for the limited purpose 

of allowing the trial court to exercise its discretion as to whether to strike the 

section 12022.53, subdivision (d) enhancements.” (Lovejoy, D073477, italics 

added.) 

Resentencing on remand. On April 30, 2021, the trial court conducted a 

resentencing hearing on remand. The court declined to strike the section 

12022.53, subdivision (d) enhancements and reimposed its original sentence, 

except for a reduction in the restitution fines from $10,000 to $1,800. 

McDavid timely filed a notice of appeal, challenging his resentencing

judgment. On January 31, 2022, we sent a letter to the parties requesting 

that they submit supplemental briefs addressing the effect on this appeal of 

the opinion recently issued by the California Supreme Court in People v. 

Tirado (2022) 12 Cal.5th 688 (Tirado). The parties have submitted, and we 

have considered, their supplemental briefs. 

DISCUSSION

I

Remand for Resentencing Is Required in Light of Tirado’s Holding That Trial 

Courts Have Discretion to Impose Lesser, Uncharged Section 12022.53 

Enhancements

McDavid contends that the trial court abused its discretion in 

reimposing the section 12022.53, subdivision (d) enhancements because the 

court was unaware of its discretion to impose lesser, uncharged section 

12022.53 enhancements or other lesser included enhancements in lieu of the 

greater, charged section 12022.53, subdivision (d) enhancements. He also 

contends that if his counsel forfeited this issue by not requesting that the 

court impose lesser section 12022.53 or other enhancements, he was denied 

effective assistance of counsel. 
6

We agree with McDavid that remand for resentencing is required, but 

not because the trial court was unaware of its discretion. Rather, we 

conclude that remand is required because, while McDavid’s appeal was 

pending in this court, the California Supreme Court issued its opinion in 

Tirado, supra, 12 Cal.5th 688, resolving a split of authority among the Courts 

of Appeal on the question of whether a trial court may strike a section 

12022.53, subdivision (d) enhancement and impose a lesser, uncharged 

section 12022.53 enhancement; Tirado applies to all nonfinal judgments. 

A

Resentencing. As noted, in Lovejoy, we vacated McDavid’s original 

sentence and remanded the matter for resentencing to allow the trial court to 

exercise its discretion as to whether to strike the section 12022.53, 

subdivision (d) enhancements. (Lovejoy, supra, D073477.) On remand, 

McDavid filed a motion to strike his section 12022.53, subdivision (d) 

enhancements in the furtherance of justice, citing his personal circumstances 

and history and the underlying facts of the case. At the resentencing 

hearing, his counsel requested that the court exercise its discretion to strike 

the section 12022.53, subdivision (d) enhancements. The prosecutor opposed 

McDavid’s request, arguing that the interests of justice and the facts of the 

case supported reimposition of the section 12022.53, subdivision (d) 

enhancements. Neither McDavid’s counsel nor the prosecutor argued that 

the court had discretion to impose lesser, uncharged section 12022.53 

enhancements in lieu of imposing the greater, charged section 12022.53, 

subdivision (d) enhancements. The court declined to exercise its discretion to 

strike the section 12022.53, subdivision (d) enhancements, finding that doing 

so would not be in the interests of justice. The court reimposed the original 

sentence, including the section 12022.53, subdivision (d) enhancements,
7

noting that McDavid was more culpable than his codefendant, Diana Lovejoy, 

and that his offenses were extremely serious. 

B

Relevant law. “Section 12022.53 sets forth the following escalating 

additional and consecutive penalties, beyond that imposed for the substantive 

crime, for use of a firearm in the commission of specified felonies . . . : a 10-

year prison term for personal use of a firearm, even if the weapon is not 

operable or loaded [section 12022.53, subdivision (b)]; a 20-year term if the 

defendant ‘personally and intentionally discharges a firearm’ [section 

12022.53, subdivision (c)]; and a 25-year-to-life term if the intentional 

discharge of the firearm causes ‘great bodily injury’ or ‘death, to any person 

other than an accomplice’ [section 12022.53, subdivision (d)].” (People v. 

Gonzalez (2008) 43 Cal.4th 1118, 1124.) “For these enhancements to apply, 

the requisite facts must be alleged in the information or indictment, and [the] 

defendant must admit those facts or the trier of fact must find them to be 

true.” (Id. at pp. 1124-1125.) 

Section 12022.53, subdivision (h), as amended effective January 1, 

2018, provides: “The court may, in the interest of justice pursuant to Section 

1385 and at the time of sentencing, strike or dismiss an enhancement 

otherwise required to be imposed by this section. The authority provided by 

this subdivision applies to any resentencing that may occur pursuant to any 

other law.” (Stats. 2017, ch. 682, § 2.) Section 1385 provides: “[A] judge or 

magistrate may, either on motion of the court or upon the application of the 

prosecuting attorney, and in furtherance of justice, order an action be 

dismissed.” (§ 1385, subd. (a).) Section 1385 further provides that where 

“the court has the authority pursuant to subdivision (a) to strike or dismiss 
8

an enhancement, the court may instead strike the additional punishment for 

that enhancement in the furtherance of justice.” (§ 1385, subd. (b)(1).) 

In People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison), the court 

concluded that under then newly amended section 12022.53, subdivision (h), 

trial courts had the discretion to strike a section 12022.53 enhancement and 

impose a lesser included, uncharged section 12022.53 enhancement. 

(Morrison, at pp. 222-223.) Morrison explained that case law generally 

supports the imposition by a trial court of a lesser enhancement that was not 

charged in the information when the greater, charged enhancement was 

found true by the trier of fact, but the trial court thereafter found that

greater enhancement to be either legally inapplicable or unsupported by 

sufficient evidence. (Id. at p. 222.) Based on that general discretion, 

Morrison extended the scope of a trial court’s discretion by concluding that a 

trial court could also impose a lesser section 12022.53 enhancement after 

striking a section 12022.53, subdivision (d) enhancement under section 1385, 

even if that lesser enhancement had not been charged in the information and 

not been found true by a trier of fact. (Morrison, at pp. 222-223.) 

In People v. Tirado (2019) 38 Cal.App.5th 637 (review granted Nov. 13, 

2019, S257658 and reversed and remanded by Tirado, supra, 12 Cal.5th 688), 

the Court of Appeal concluded that the plain language of sections 1385 and 

12022.53, subdivision (h) did not authorize a trial court to substitute one 

enhancement for another. (People v. Tirado, at p. 643.) Accordingly, the 

court concluded that trial courts do not have the authority to impose lesser, 

uncharged section 12022.53 enhancements, but rather, have only the binary 

choice of imposing a section 12022.53, subdivision (d) enhancement or 

striking or dismissing it. (People v. Tirado, at pp. 640, 643-644.) In so 
9

holding, the court expressed its disagreement with the reasoning and holding 

in Morrison, supra, 34 Cal.App.5th 217. (People v. Tirado, at p. 644.) 

In Tirado, supra, 12 Cal.5th 688, the California Supreme Court noted 

that the Courts of Appeal had split on the question of whether a trial court 

has the authority to strike a greater section 12022.53, subdivision (d) 

enhancement and impose a lesser, uncharged section 12022.53 enhancement 

instead, and agreed with Morrison’s holding that trial courts do have such 

discretion. (Tirado, at pp. 696, 701.) In explaining its holding, Tirado

applied reasoning somewhat different from that applied in Morrison, 

concluding: “When an accusatory pleading alleges and the jury finds true the 

facts supporting a section 12022.53[, subdivision] (d) enhancement, and the 

court determines that the section 12022.53[, subdivision] (d) enhancement 

should be struck or dismissed under section 12022.53[, subdivision] (h), the 

court may, under section 12022.53[, subdivision] (j), impose an enhancement 

under section 12022.53[, subdivision] (b) or (c).” (Tirado, at p. 700.) The 

court reasoned that section 12022.53, subdivision (h) gives trial courts the 

discretion to strike or dismiss a greater, charged section 12022.53 

enhancement and that section 12022.53, subdivision (j) gives them the 

discretion to impose a lesser, uncharged section 12022.53 enhancement 

where the accusatory pleading alleged, and the jury found true, the facts 

supporting such a lesser, uncharged section 12022.53 enhancement. (Tirado, 

at pp. 694, 697.) In particular, the court stated: “Section 12022.53[, 

subdivision] (j) is the subdivision that authorizes the imposition of 

enhancements under section 12022.53. It provides that for the penalties in 

section 12022.53 to apply, the existence of any fact required by section 

12022.53[, subdivision] (b), (c), or (d) must be alleged in the accusatory 
10

pleading and admitted or found true.”5 (Tirado, at p. 700.) Accordingly, 

Tirado held that a trial court has the discretion to strike a greater, charged 

section 12022.53 enhancement and impose a lesser, uncharged section 

12022.53 enhancement where the facts supporting that lesser enhancement 

were alleged in the information and found true by the jury. 

C

Analysis. McDavid asserts that because the record shows that the trial 

court was unaware of its discretion to strike the section 12022.53, subdivision 

(d) enhancements and instead impose lesser, uncharged section 12022.53 

enhancements or other lesser included enhancements, we must remand the 

matter to permit the court to decide whether to exercise that discretion. The 

People argue that McDavid may not raise this issue on appeal because he 

forfeited it by not raising it in the trial court prior to or during his 

resentencing hearing. However, as discussed post, because Tirado resolved a 

split of authority among the Courts of Appeal on the instant question, Tirado

applies retrospectively to McDavid’s nonfinal judgment and therefore,

remand for resentencing is required regardless of any forfeiture.

At the time of McDavid’s April 30, 2021 resentencing, the California 

Supreme Court had not yet issued its decision in Tirado, supra, 12 Cal.5th 

688, and there is nothing in the record indicating that the trial court 

anticipated the Supreme Court’s holding, or otherwise understood that it had

discretion to strike the section 12022.53, subdivision (d) enhancements and 

instead impose lesser, uncharged section 12022.53 enhancements. Neither 

McDavid’s counsel nor the prosecutor raised the issue of the trial court’s 

5 Section 12022.53, subdivision (j) provides: “For the penalties in this 

section to apply, the existence of any fact required under subdivision (b), (c), 

or (d) shall be alleged in the accusatory pleading and either admitted by the 

defendant in open court or found to be true by the trier of fact. . . .” 
11

discretion to strike the section 12022.53, subdivision (d) enhancements and 

instead impose lesser, uncharged section 12022.53 enhancements. Further, 

there is nothing in our opinion in Lovejoy that would have made the trial 

court aware of that discretion. On the contrary, the language of our 

disposition in Lovejoy could have reasonably been interpreted by the trial 

court, as well as the parties, as giving the court only a binary choice on 

remand to either impose or strike the section 12022.53, subdivision (d) 

enhancements. (Lovejoy, supra, D073477.) In reimposing the section 

12022.53, subdivision (d) enhancements, the trial court reasoned that it 

would not be in the interests of justice to strike those enhancements. 

Because the court’s reasoning reflects an apparent belief that it had only a 

binary choice (i.e., to either impose or strike the section 12022.53, subdivision 

(d) enhancements) in exercising its sentencing discretion on remand, the 

record does not demonstrate that the trial court understood, and exercised,

its discretion to strike the section 12022.53, subdivision (d) enhancements 

and instead impose lesser, uncharged section 12022.53 enhancements. 

In addition, because, as noted ante, prior to the Supreme Court’s 

decision in Tirado there was a split among the Courts of Appeal on the 

question of a trial court’s authority to strike a greater section 12022.53 

enhancement and instead impose a lesser, uncharged section 120220.53 

enhancement, we cannot presume that, at the time of McDavid’s resentencing 

on April 30, 2021, the trial court was aware of its discretion in this regard. 

(See, e.g., People v. Jeffers (1987) 43 Cal.3d 984, 1000 (Jeffers); People v. 

Chambers (1982) 136 Cal.App.3d 444, 457 (Chambers).) On the contrary, we 

cannot fault the trial court for failing to anticipate that the California 

Supreme Court would subsequently issue its opinion in Tirado holding that 

trial courts have such discretion. 
12

We agree with McDavid that his case must be remanded for 

resentencing, but not, as he argues, because the trial court was unaware of 

its discretion under Morrison. Rather, his case must be remanded because he 

is entitled to the retrospective application of the holding in Tirado. The 

general rule is that judicial decisions are given retrospective effect. People v. 

Guerra (1984) 37 Cal.3d 385 noted that the principle of retrospective 

application to all nonfinal judgments “is well settled. ‘As a matter of normal 

judicial operation, even a non-retroactive decision [i.e., one that cannot serve 

as a basis for collateral attack on a final judgment] ordinarily governs all 

cases still pending on direct review when the decision is rendered.’ 

[Citation.]” (Id. at p. 400, quoting People v. Rollins (1967) 65 Cal.2d 681, 685, 

fn. 3.) That rule applies to decisions of the California Supreme Court, like 

Tirado, that resolve conflicts between the Courts of Appeal or establish the 

meaning of a statutory enactment. (Burris v. Superior Court (2005) 34 

Cal.4th 1012, 1023; In re Borlik (2011) 194 Cal.App.4th 30, 40; People v. 

Walsh (1996) 49 Cal.App.4th 1096, 1104 [holding that because California 

Supreme Court opinion “resolved a conflict between lower court decisions, the 

ordinary presumption of retroactive operation applies”]; Sargon Enterprises, 

Inc. v. University of Southern California (2013) 215 Cal.App.4th 1495, 1503.) 

Accordingly, although Tirado had not been decided at the time of McDavid’s 

resentencing on April 30, 2021, he is entitled to its retrospective application 

to his case because the judgment in his case is not final. 

Because the record does not show that the trial court was aware that it 

had discretion to strike the section 12022.53, subdivision (d) enhancements 

and instead impose lesser, uncharged section 12022.53 enhancements, we 

conclude that the appropriate remedy is to remand the matter to the trial 

court for the court to conduct another resentencing hearing at which it shall 
13

exercise its discretion as to whether to strike the section 12022.53, 

subdivision (d) enhancements and instead impose lesser, uncharged section 

12022.53 enhancements, as authorized by Tirado.6 (Cf. People v. Lua (2017) 

10 Cal.App.5th 1004, 1007 [remand appropriate for court to consider striking 

some or all enhancements]; cf. Jeffers, supra, 43 Cal.3d at p. 1000 [remanded 

for resentencing where lack of authoritative statutory construction rebutted 

presumption that trial court followed established law]; Chambers, supra, 136 

Cal.App.3d at p. 457 [remand for resentencing was appropriate because trial 

court’s sentencing discretion had not been established at the time of 

appellant’s sentencing].) We express no opinion regarding how the trial court 

should exercise that discretion on remand. 

D

McDavid’s suggested section 12022.5, subdivision (a) lesser 

enhancement option. McDavid also argues that the trial court has discretion 

to strike the section 12022.53, subdivision (d) enhancements and instead 

impose any lesser included enhancements if the elements of those 

enhancements have been found true by the trier of fact (e.g., § 12022.5, subd. 

6 Although at the April 30, 2021 resentencing hearing the trial court 

elected not to strike the section 12022.53, subdivision (d) enhancements, 

noting McDavid’s greater culpability than Lovejoy’s and the seriousness of 

his offenses, the record supports an inference that the court may not 

necessarily have declined to exercise its discretion under Tirado if it had been 

aware of it. For example, given Lovejoy’s recruitment and manipulation of 

McDavid to kill her estranged husband, as well as other circumstances (e.g., 

McDavid’s lack of serious criminal history, his military history, etc.), the 

court might have concluded that the imposition of a total prison term for 

McDavid (i.e., 50 years to life) that was nearly twice the total prison term 

imposed on Lovejoy (i.e., 26 years to life) was not appropriate under the 

circumstances and exercised its discretion to strike the section 12022.53, 

subdivision (d) enhancements and instead impose lesser, uncharged section 

12022.53 enhancements. 
14

(a) enhancement or § 12022.53, subd. (b) or (c) enhancement). Although 

Tirado did not expressly address the question of whether a trial court has the 

discretion to strike a section 12022.53, subdivision (d) enhancement and 

instead impose a lesser included enhancement other than a section 12022.53, 

subdivision (b) or (c) enhancement (e.g., § 12022.5, subd. (a) enhancement), 

its language and reasoning provide support for such an option. 

In its introductory paragraph, Tirado stated: “The question [in this 

case] is what the court may do if it decides to strike [a section 12022.53, 

subdivision (d)] enhancement. May the court impose a lesser uncharged 

enhancement under either section 12022.53, subdivision (b) . . . or section 

12022.53, subdivision (c) . . . ? Or is the court limited to imposing the section 

12022.53[, subdivision] (d) enhancement or striking it? We conclude the 

statutory framework permits a court to strike the section 12022.53, 

[subdivision] (d) enhancement found true by the jury and to impose a lesser 

uncharged statutory enhancement instead.” (Tirado, supra, 12 Cal.5th at 

p. 692, italics added.) The italicized language in that final sentence supports 

an interpretation of Tirado that would authorize trial courts to strike a 

section 12022.53, subdivision (d) enhancement and instead impose any lesser 

included enhancement, whether a lesser section 12022.53 enhancement or 

other lesser enhancement, if the factual elements for that lesser 

enhancement have been alleged in the accusatory pleading and found true by 

the trier of fact. 

In reaching this conclusion, Tirado included a discussion of cases in 

which courts have approved the imposition of a lesser included enhancement 

other than one listed in the specific statute for the charged enhancement. 

(Tirado, supra, 12 Cal.5th at pp. 697-699, citing People v. Strickland (1974) 

11 Cal.3d 946, 961 [§ 12022 enhancement applied instead of charged 
15

§ 12022.5 enhancement]; People v. Fialho (2014) 229 Cal.App.4th 1389, 1395, 

1398 [§ 12022.5, subd. (a) enhancement applied instead of charged 

§ 12022.53, subd. (d) enhancement].) Tirado stated: “Here, the Legislature 

has permitted courts to impose the penalties under section 12022.53[, 

subdivision] (b), (c), or (d) so long as the existence of facts required by the 

relevant subdivision has been alleged and found true.” (Tirado, at p. 702, 

italics added.) As McDavid argues, this reasoning suggests that a trial court 

is authorized to exercise its discretion under section 12022.53, subdivision (h) 

to strike a charged section 12022.53, subdivision (d) enhancement and 

instead impose an uncharged lesser enhancement, provided that the factual 

elements for that lesser enhancement were alleged in the accusatory pleading 

and found true by the trier of fact (e.g., § 12022.53, subd. (b) or (c) 

enhancement or § 12022.5, subd. (a) enhancement). 

Accordingly, we agree with McDavid’s argument that, under the 

reasoning of Tirado, the trial court has the discretion on remand to strike the 

section 12022.53, subdivision (d) enhancements and instead impose lesser 

included uncharged enhancements including, but not limited to, section 

12022.53, subdivision (b) or (c) enhancements, if the factual elements for 

those lesser included enhancements were alleged in the information and 

found true by the jury (e.g., § 12022.5, subd. (a) enhancements). 

II

Government Code Section 29550.1 Fee

In his opening brief, McDavid contended that the $154 criminal justice 

administration fee imposed under former Government Code section 29550.1

by the trial court at his April 30, 2021, resentencing hearing should be 

stricken in its entirety pursuant to Assembly Bill No. 1869, which became 

effective July 1, 2021. However, in his reply brief, he acknowledges our 
16

holding in People v. Lopez-Vinck (2021) 68 Cal.App.5th 945 (Lopez-Vinck), 

which was decided after he filed his opening brief, and now agrees with the 

People that only any remaining unpaid balance of that $154 fee as of July 1, 

2021, must be vacated. 

A

$154 fee imposed. At McDavid’s original sentencing hearing on 

January 31, 2018, the trial court imposed a criminal justice administration 

fee of $154 pursuant to former Government Code section 29550.1.7 At 

McDavid’s resentencing hearing on April 30, 2021, the court reimposed the 

$154 criminal justice administration fee. 

B

Relevant law. As we discussed in Lopez-Vinck, supra, 68 Cal.App.5th 

945, the Legislature enacted new Government Code section 6111 (§ 6111) and 

repealed former Government Code section 29550.1, effective July 1, 2021. 

(Lopez-Vinck, at p. 950.) Section 6111 provides:

“(a) On and after July 1, 2021, the unpaid balance of any 

court-imposed costs pursuant to Section 27712, subdivision 

(c) or (f) of Section 29550, and Sections 29550.1, 29550.2, 

and 29550.3, as those sections read on June 30, 2021, is 

unenforceable and uncollectible and any portion of a 

judgment imposing those costs shall be vacated. 

7 Although the abstract of judgment states that the $154 criminal justice 

administration fee was being imposed pursuant to Government Code section 

29550, we presume the court actually imposed that fee pursuant to former 

Government Code section 29550.1. (See, e.g., Lopez-Vinck, supra, 68 

Cal.App.5th at p. 950 [$154 criminal justice administration fee imposed 

pursuant to former Gov. Code, § 29550.1]; People v. Gutierrez (2019) 35 

Cal.App.5th 1027, 1031 & fn. 10 [$154 criminal justice administration fee 

imposed pursuant to former Gov. Code, § 29550.1].) Accordingly, we shall 

hereafter refer to former Government Code section 29550.1 as the statutory 

authority for the court’s imposition of the $154 criminal justice 

administration fee. 
17

“(b) This section shall become operative on July 1, 2021.”

(Stats. 2020, ch. 92; Assembly Bill No. 1869 (2019-2020 Reg. Sess.) § 2.) 

Construing that statutory language, we concluded: “By specifying the precise 

date on which the costs that have been imposed on defendants pursuant to 

[former Government Code section 29550.1] become unenforceable and 

uncollectible, the Legislature made clear that any amounts paid prior to [July 

1, 2021] need not be vacated, regardless of whether the sentence of the person 

on whom the costs were imposed is final.” (Lopez-Vinck, supra, 68 

Cal.App.5th at p. 953.) We further concluded that because the Legislature 

expressed its intent to extend the ameliorative changes regarding the 

imposition of administrative fees to individuals serving both final and 

nonfinal sentences, “but only to the extent of relieving those individuals of 

the burden of any debt that remains unpaid on and after July 1, 2021, the [In 

re Estrada (1965) 63 Cal.2d 740] rule does not apply, and [the appellant] is 

not entitled to have the fee imposed pursuant to [former] Government Code 

section 29550.1 vacated in its entirety as a result of the repeal of [former 

Government Code] section 29550.1.” (Ibid.) Accordingly, we held that the 

appellant was “entitled to the vacatur of that portion of the criminal justice 

administration fee imposed pursuant to [former] Government Code section 

29550.1 that remains unpaid as of July 1, 2021, and to the modification of his 

judgment consistent with such vacatur.” (Ibid.) 

C

Analysis. As the People argue in their respondent’s brief and as 

McDavid concedes in his reply brief, our opinion in Lopez-Vinck, supra, 68 

Cal.App.5th 945 is the controlling authority on McDavid’s initial contention 

that the $154 criminal justice administration fee imposed by the trial court 

under former Government Code section 29550.1 should be stricken in its 
18

entirety. As we explained in Lopez-Vinck, under section 6111, subdivision 

(a), an appellant like McDavid is not entitled to have the entire $154 fee 

stricken from his judgment, but rather is entitled to have vacated only any 

remaining balance of that fee that was unpaid as of July 1, 2021. (LopezVinck, at p. 953.) Accordingly, we vacate any balance of the costs imposed by 

the trial court pursuant to former Government Code section 29550.1 that 

remained unpaid as of July 1, 2021. (Lopez-Vinck, at p. 954.) 

III

Presentence Custody Credits

McDavid contends that the trial court erred by not crediting him with 

all actual custody time that he had served before his resentencing on April 

30, 2021. The People concede that the trial court should have awarded 

McDavid credit for all presentence custody that he served prior to his 

resentencing on April 30, 2021. 

A

Awards of presentence custody credits. At McDavid’s original 

sentencing hearing on January 31, 2018, the trial court awarded him 511 

days of presentence credits for actual days served in custody and 76 days of 

presentence credits for local conduct, for a total of 587 days of presentence 

credits. At his resentencing hearing on April 30, 2021, the court reduced the 

amount of his restitution fines from $10,000 to $1,800 and then awarded him 

a total of 587 days of presentence credits, which is the same number of 

presentence credits that it awarded him at his original sentencing. 

B

Relevant law. “When . . . an appellate remand results in a modification 

of a felony sentence during the term of imprisonment, the trial court must 

calculate actual time the defendant has already served and credit that time 
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against the ‘subsequent sentence.’ ” (People v. Buckhalter (2001) 26 Cal.4th 

20, 23 (Buckhalter); see also § 2900.1 [when a sentence is modified while 

being served, the time already served “shall be credited upon any subsequent 

sentence [the defendant] may receive upon a new commitment for the same 

criminal act or acts”].) Accordingly, when a trial court modifies a defendant’s 

sentence on remand after an appeal, it must credit the defendant “with all 

actual days he had spent in custody, whether in jail or prison, up to that 

time.” (Buckhalter, at p. 37.) 

C

At McDavid’s resentencing on remand after Lovejoy, the trial court 

modified its original sentence by reducing the amount of his restitution fines 

from $10,000 to $1,800. We conclude, and the parties agree, that because the 

trial court modified McDavid’s sentence on remand, the court was required to 

recalculate the number of presentence credits to which he was entitled 

through the date of his resentencing (i.e., 1,772 days of presentence custody

credits), award him those presentence credits in resentencing him, and then 

reflect that updated award in its amended abstract of judgment. (Buckhalter, 

supra, 26 Cal.4th at pp. 23, 37; § 2900.1.) By awarding McDavid only 511

days of presentence custody credits served through the date of his original 

sentencing and omitting an award for the 1,185 days of custody that he 

served in prison between the time of his original sentencing on January 31, 

2018, and his resentencing on April 30, 2021, the court erred. On remand of 

this matter, the trial court is directed to amend its abstract of judgment for 

its April 30, 2021 resentencing to reflect a total award of 1,772 days of 

presentence credits (i.e., 1,696 days of presentence custody credits and 76 

days of local conduct credits). In addition, in the event that the court on 

remand exercises its discretion to strike either or both of the section 
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12022.53, subdivision (d) enhancements entirely or impose lesser section 

12022.53 or other lesser included enhancements, the court is directed to 

award McDavid presentence credits for all time he will have served in 

custody through the date of that resentencing.8 

DISPOSITION

The judgment is modified to vacate any portion of the criminal justice 

administration fee imposed by the trial court pursuant to former Government 

Code section 29550.1 that remained unpaid as of July 1, 2021. McDavid’s 

sentence that was imposed on April 30, 2021, is vacated and the matter is 

remanded for resentencing: (1) for the limited purpose of allowing the trial 

court to exercise its discretion as to whether to strike the section 12022.53, 

subdivision (d) enhancements and instead impose lesser section 12022.53, 

section 12022.5, subdivision (a), or other lesser included enhancements; and 

(2) with directions that the trial court amend its abstract of judgment to 

reflect our vacatur of any balance of the criminal justice administration fee 

imposed pursuant to former Government Code section 29550.1 that remained 

unpaid as of July 1, 2021, and to reflect an award of the correct number of 

presentence credits as of April 30, 2021. In all other respects, the judgment 

is affirmed as so modified. The court shall forward a copy of the amended 

abstract of judgment to the Department of Corrections and Rehabilitation. 

8 Because our vacating any remaining balance of the criminal justice 

administration fee imposed pursuant to Government Code section 29550.1 

does not have the effect of reducing McDavid’s criminal punishment (People 

v. Alford (2007) 42 Cal.4th 749, 756-759 [court security fee is not criminal 

punishment]; cf. People v. Hanson (2000) 23 Cal.4th 355, 362 [restitution 

fines are a form of criminal punishment]), any reimposition of the section 

12022.53, subdivision (d) enhancements without other modification of 

McDavid’s sentence will not require a recalculation of his presentence credits 

through the date of the resentencing on remand from this appeal. 

(Buckhalter, supra, 26 Cal.4th at pp. 23, 37; § 2900.1.) 
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AARON, J.

WE CONCUR:

McCONNELL, P. J.

DATO, J.